[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 985 Referred in Senate (RFS)]

111th CONGRESS
  1st Session
                                H. R. 985


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 1, 2009

  Received; read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 AN ACT


 
  To maintain the free flow of information to the public by providing 
  conditions for the federally compelled disclosure of information by 
             certain persons connected with the news media.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Free Flow of Information Act of 
2009''.

SEC. 2. COMPELLED DISCLOSURE FROM COVERED PERSONS.

    (a) Conditions for Compelled Disclosure.--In any matter arising 
under Federal law, a Federal entity may not compel a covered person to 
provide testimony or produce any document related to information 
obtained or created by such covered person as part of engaging in 
journalism, unless a court determines by a preponderance of the 
evidence, after providing notice and an opportunity to be heard to such 
covered person--
            (1) that the party seeking to compel production of such 
        testimony or document has exhausted all reasonable alternative 
        sources (other than the covered person) of the testimony or 
        document;
            (2) that--
                    (A) in a criminal investigation or prosecution, 
                based on information obtained from a person other than 
                the covered person--
                            (i) there are reasonable grounds to believe 
                        that a crime has occurred; and
                            (ii) the testimony or document sought is 
                        critical to the investigation or prosecution or 
                        to the defense against the prosecution; or
                    (B) in a matter other than a criminal investigation 
                or prosecution, based on information obtained from a 
                person other than the covered person, the testimony or 
                document sought is critical to the successful 
                completion of the matter;
            (3) in the case that the testimony or document sought could 
        reveal the identity of a source of information or include any 
        information that could reasonably be expected to lead to the 
        discovery of the identity of such a source, that--
                    (A) disclosure of the identity of such a source is 
                necessary to prevent, or to identify any perpetrator 
                of, an act of terrorism against the United States or 
                its allies or other significant and specified harm to 
                national security with the objective to prevent such 
                harm;
                    (B) disclosure of the identity of such a source is 
                necessary to prevent imminent death or significant 
                bodily harm with the objective to prevent such death or 
                harm, respectively;
                    (C) disclosure of the identity of such a source is 
                necessary to identify a person who has disclosed--
                            (i) a trade secret, actionable under 
                        section 1831 or 1832 of title 18, United States 
                        Code;
                            (ii) individually identifiable health 
                        information, as such term is defined in section 
                        1171(6) of the Social Security Act (42 U.S.C. 
                        1320d(6)), actionable under Federal law; or
                            (iii) nonpublic personal information, as 
                        such term is defined in section 509(4) of the 
                        Gramm-Leach-Biley Act (15 U.S.C. 6809(4)), of 
                        any consumer actionable under Federal law; or
                    (D)(i) disclosure of the identity of such a source 
                is essential to identify in a criminal investigation or 
                prosecution a person who without authorization 
                disclosed properly classified information and who at 
                the time of such disclosure had authorized access to 
                such information; and
                    (ii) such unauthorized disclosure has caused or 
                will cause significant and articulable harm to the 
                national security; and
            (4) that the public interest in compelling disclosure of 
        the information or document involved outweighs the public 
        interest in gathering or disseminating news or information.
    (b) Authority To Consider National Security Interest.--For purposes 
of making a determination under subsection (a)(4), a court may consider 
the extent of any harm to national security.
    (c) Limitations on Content of Information.--The content of any 
testimony or document that is compelled under subsection (a) shall--
            (1) not be overbroad, unreasonable, or oppressive and, as 
        appropriate, be limited to the purpose of verifying published 
        information or describing any surrounding circumstances 
        relevant to the accuracy of such published information; and
            (2) be narrowly tailored in subject matter and period of 
        time covered so as to avoid compelling production of 
        peripheral, nonessential, or speculative information.
    (d) Rule of Construction.--Nothing in this Act shall be construed 
as applying to civil defamation, slander, or libel claims or defenses 
under State law, regardless of whether or not such claims or defenses, 
respectively, are raised in a State or Federal court.
    (e) Exception Relating to Criminal or Tortious Conduct.--The 
provisions of this section shall not prohibit or otherwise limit a 
Federal entity in any matter arising under Federal law from compelling 
a covered person to disclose any information, record, document, or item 
obtained as the result of the eyewitness observation by the covered 
person of alleged criminal conduct or as the result of the commission 
of alleged criminal or tortious conduct by the covered person, 
including any physical evidence or visual or audio recording of the 
conduct, if a Federal court determines that the party seeking to compel 
such disclosure has exhausted all other reasonable efforts to obtain 
the information, record, document, or item, respectively, from 
alternative sources. The previous sentence shall not apply, and 
subsections (a) and (b) shall apply, in the case that the alleged 
criminal conduct observed by the covered person or the alleged criminal 
or tortious conduct committed by the covered person is the act of 
transmitting or communicating the information, record, document, or 
item sought for disclosure.

SEC. 3. COMPELLED DISCLOSURE FROM COMMUNICATIONS SERVICE PROVIDERS.

    (a) Conditions for Compelled Disclosure.--With respect to testimony 
or any document consisting of any record, information, or other 
communication that relates to a business transaction between a 
communications service provider and a covered person, section 2 shall 
apply to such testimony or document if sought from the communications 
service provider in the same manner that such section applies to any 
testimony or document sought from a covered person.
    (b) Notice and Opportunity Provided to Covered Persons.--A court 
may compel the testimony or disclosure of a document under this section 
only after the party seeking such a document provides the covered 
person who is a party to the business transaction described in 
subsection (a)--
            (1) notice of the subpoena or other compulsory request for 
        such testimony or disclosure from the communications service 
        provider not later than the time at which such subpoena or 
        request is issued to the communications service provider; and
            (2) an opportunity to be heard before the court before the 
        time at which the testimony or disclosure is compelled.
    (c) Exception to Notice Requirement.--Notice under subsection 
(b)(1) may be delayed only if the court involved determines by clear 
and convincing evidence that such notice would pose a substantial 
threat to the integrity of a criminal investigation.

SEC. 4. DEFINITIONS.

    In this Act:
            (1) Communications service provider.--The term 
        ``communications service provider''--
                    (A) means any person that transmits information of 
                the customer's choosing by electronic means; and
                    (B) includes a telecommunications carrier, an 
                information service provider, an interactive computer 
                service provider, and an information content provider 
                (as such terms are defined in sections 3 and 230 of the 
                Communications Act of 1934 (47 U.S.C. 153, 230)).
            (2) Covered person.--The term ``covered person'' means a 
        person who regularly gathers, prepares, collects, photographs, 
        records, writes, edits, reports, or publishes news or 
        information that concerns local, national, or international 
        events or other matters of public interest for dissemination to 
        the public for a substantial portion of the person's livelihood 
        or for substantial financial gain and includes a supervisor, 
        employer, parent, subsidiary, or affiliate of such covered 
        person. Such term shall not include--
                    (A) any person who is a foreign power or an agent 
                of a foreign power, as such terms are defined in 
                section 101 of the Foreign Intelligence Surveillance 
                Act of 1978 (50 U.S.C. 1801);
                    (B) any organization designated by the Secretary of 
                State as a foreign terrorist organization in accordance 
                with section 219 of the Immigration and Nationality Act 
                (8 U.S.C. 1189);
                    (C) any person included on the Annex to Executive 
                Order No. 13224, of September 23, 2001, and any other 
                person identified under section 1 of that Executive 
                order whose property and interests in property are 
                blocked by that section;
                    (D) any person who is a specially designated 
                terrorist, as that term is defined in section 595.311 
                of title 31, Code of Federal Regulations (or any 
                successor thereto); or
                    (E) any terrorist organization, as that term is 
                defined in section 212(a)(3)(B)(vi)(II) of the 
                Immigration and Nationality Act (8 U.S.C. 
                1182(a)(3)(B)(vi)(II)).
            (3) Document.--The term ``document'' means writings, 
        recordings, and photographs, as those terms are defined by 
        Federal Rule of Evidence 1001 (28 U.S.C. App.).
            (4) Federal entity.--The term ``Federal entity'' means an 
        entity or employee of the judicial or executive branch or an 
        administrative agency of the Federal Government with the power 
        to issue a subpoena or issue other compulsory process.
            (5) Journalism.--The term ``journalism'' means the 
        gathering, preparing, collecting, photographing, recording, 
        writing, editing, reporting, or publishing of news or 
        information that concerns local, national, or international 
        events or other matters of public interest for dissemination to 
        the public.

            Passed the House of Representatives March 31, 2009.

            Attest:

                                            LORRAINE C. MILLER,

                                                                 Clerk.